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Miller v. Cartledge

United States District Court, D. South Carolina, Charleston Division

January 26, 2016

Reginald Miller, #261476, Petitioner,
v.
Warden Cartledge, Respondent.

          REPORT AND RECOMMENDATION

          MARY GORDON BAKER, Magistrate Judge.

         The Petitioner, a state prisoner proceeding pro se, seeks habeas relief pursuant to 28 U.S.C. § 2254. This matter is before the Court on Respondent's Motion for Summary Judgment. (Dkt. No. 27; see also Dkt. No. 28.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Rule 73.02(B)(2)(c), D.S.C., this Magistrate Judge is authorized to review the instant petition for relief and submit findings and recommendations to the District Court.

         The Petitioner filed this habeas action on January 5, 2015. (Dkt. No. 1.) On August 26, 2015, Respondent filed a Motion for Summary Judgment. (Dkt. No. 27; see also Dkt. No. 28.) By order filed the same day, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Petitioner was advised of the summary judgment procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 28.) On October 7, 2015, Petitioner filed his Petitioner's Travese[sic]/Objection to Memorandum of Law in Support of Motion for Summary Judgment. (Dkt. No. 31.)

         PROCEDURAL HISTORY

         The Petitioner is currently confined at McCormick Correctional Institution. The grand jury in Spartanburg County indicted Petitioner in May of 2006 for unlawful conduct toward a child (2006-GS-42-1548), trafficking in cocaine (2006-GS-42-1549), trafficking in cocaine greater than 28 grams (2006-GS-42-1550), and trafficking in crack cocaine greater than 10 grams (2006-GS-42-1551). (Dkt. No. 28-1 at 104-109, 115-116.) Thomas A.M. ("Tam") Boggs, Esq. ("Counsel"), represented Petitioner at trial. On June 15, 2006, Petitioner was convicted in absentia by a jury of trafficking in cocaine greater than 28 grams (2006-GS-42-1550) and trafficking crack cocaine greater than 10 grams (2006-GS-42-1551). (Dkt. No. 38-1 at 165-66.) Judge Doyet A. Early, III ("the trial judge") sealed the Petitioner's sentence following the jury trial.[1] (Dkt. No. 28-2 at 103-105.) Counsel successfully argued before Judge Early to sentence Petitioner to first offenses.[2] ( Id. ) Judge J. Cordell Maddox, Jr. pronounced sentence on Petitioner on April 13, 2007, after Petitioner was picked up on a bench warrant. ( Id. at 109-113.) Judge Maddox unsealed and formally imposed Judge Early's sentence on Petitioner of twentythree years imprisonment and a $50, 000 fine for trafficking in cocaine greater than 28 grams (2006-GS-42-1550) and a concurrent sentence of ten years imprisonment for trafficking in crack cocaine greater than 10 grams (2006-GS-42-1551). ( Id. ) Judge Maddox gave Petitioner credit for time served in the North Carolina Department of Corrections beginning August 1, 2006. ( Id. ) Petitioner had pled guilty to the unlawful child neglect charge before his trial. The other indicted offense was nolle prossed by the Solicitor's Office.

         Petitioner appealed his convictions and sentences to the South Carolina Court of Appeals by way of an Anders brief.[3] Petitioner was represented in the appeal by Katherine Hudgins of the South Carolina Commission on Indigent Defense. Petitioner raised the following issue to the Court of Appeals (verbatim):

1. Did the trial court err in admitting the alleged cocaine and crack cocaine into evidence when the State failed to established a sufficient chain of custody.
2. Did the trial court err in allowing Margaret Greer to testify at trial when she was not listed on the prosecution's witness list as a prosecution witness, which violated the disclosure rules as set forth in Rule-5, of the SCRCrimP.

(Dkt. No. 28-1 at 90.) On January 25, 2010, the South Carolina Court of Appeals issued an unpublished opinion affirming the conviction by dismissing the appeal and granting Ms. Hudgins' request to withdraw. State v. Miller, Op. No. 2010-UP-020 (filed January 25, 2010); (Dkt. No. 28-1 at 101-02.) The Remittitur was returned February 10, 2010. (Dkt. No. 28-1 at 103.)

         Petitioner filed his application for post-conviction relief (PCR) on December 30, 2010, and filed an amendment on March 31, 2012. Respondent made its Return on July 17, 2012. An evidentiary hearing was held January 11, 2013, before Judge J. Derham Cole ("the PCR Court"). (Dkt. No. 28-1 at 24-25.) The Petitioner was present at the hearing and was represented by J. Falkner Wilkes, Esq. At the hearing, the Petitioner and Ebony Scruggs testified on Petitioner's behalf. ( Id. ) Counsel testified as well. ( Id. ) At the PCR hearing, the Petitioner alleged the following allegations:

1. Ineffective assistance of trial counsel, in that;
a. Counsel failed to prepare for trial,
b. Counsel failed to do pre-trial investigation,
c. Counsel waived opening and closing statements,
d. Counsel failed to make a motion for mistrial or motion for acquittal,
e. Counsel failed to conduct meaningful cross-examination,
f. Counsel failed to call court's attention to substantial change in evidence that was subject to chain of custody or object to introduction of that evidence,
g. Counsel failed to object to probable cause for Applicant's arrest.

(Dkt. No. 28-1 at 5.) On July 10, 2013, the PCR Court issued its Order of Dismissal denying and dismissing the PCR Application with prejudice; it was filed on July 15, 2013. (Dkt. No. 28-1 at 4-16.) The Petitioner filed a Rule 59, SCRCP, Motion to Alter or Amend, which was denied on September 23, 2013, in a written Order. (Dkt. No. 28-1 at 18.)

         Falkner Wilkes, Esq., represented the Petitioner on appeal of the PCR court in a Petition for Writ of Certiorari to the South Carolina Supreme Court on June 4, 2014. (Dkt. No. 28-3.) The ...


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